Condo talk: Swimming pools mean responsibilities for association

 
Posted6/4/2011 12:01 AM

With summer pool season fast approaching, a number of questions come up regarding an association's potential liability. FACT -- If there is an injury or property damage resulting from use or abuse of a swimming pool, the association is going to get sued. There is no middle ground; it is going to happen.

Thus, by being proactive, having strong enforceable rules and procedures and by enforcing them, an association can at least limit its exposure. Even though a swimming pool is defined as a large hole in the ground that you shovel money into, it is a fact of life that many associations have pools, and they have to be dealt with in a professional manner whether or not they are fully utilized or sit empty all day.

 

Here are some considerations in dealing with fun to be had in and around the water:

• Rules, rules and more rules. Probably more than any other amenity, a pool will require careful regulation and monitoring. Who is allowed in and when? What are the hours? Can it be rented for private parties? Can someone give lessons as a business? This could be an endless list, except every association is different, as is with the extent and scope of usage. Some associations have an active pool populace while others sit nearly empty from Memorial Day to Labor Day. The rules should be clear, concise, address every possible contingency and should be prominently displayed on the premises. Many associations issue tags either annually or permanently.

• Drunk and disorderly. What happens when a 120-pound lifeguard tries to remove a 250-pound abusive drunk from a lawn chair? Confrontations should be avoided at all costs. The lifeguard is not there to enforce the law or be a keeper in a zoo. This scenario requires the appropriate level of control, which usually means the local police department or private security.

• Alcohol and water do not mix. The easiest way to dramatically reduce exposure is to ban any form of alcohol from within 50 feet of the pool area or other fenced-in pool area. There are certainly extenuating circumstances such as association sponsored social events, however, what is good enough for driving a motor vehicle should also be applied to pools.

• Do you need lifeguards? There is no law that requires an association to hire lifeguards. Illinois public health codes govern swimming pool standards and the rules address lifeguards. Lifeguards are only required when an association allows "persons under the age of 16" to be in the pool area without a parent, guardian or responsible person over 16. (Does this mean a 16-year-old can be responsible for his 15-year-old girlfriend?) This also means that some people will translate the word "lifeguard" into "baby sitter."

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An association should post a sign such as "No lifeguard on duty -- Swim at your own risk." Certainly a board of directors should check with their insurance company, but if someone should drown in an association pool, is the association going to have any more or less liability with or without a lifeguard? If an association employs its own lifeguards, they must be certified.

• A swimming pool is not a day care center. State guidelines should be strictly enforced regarding age restrictions. A board needs to be sure they are not running afoul of the Civil Rights Act by being "anti-family," however, Illinois law provides that "parents or guardians should supervise their children" and "no one should swim alone." (State pool regulations are governed by 77 Ill. Administrative Code Section 820.360.)

• Collect your delinquent assessments every April. Most associations have two procedures: (a) pool tags are usually issued in April, and (b) only members in good standing (paid up) get pool tags. This is a good way to clean up a delinquency list if your pool gets maximum usage.

• In the event of a casualty, let the professionals do their job. In the event of an injury in and around the pool area, it may be necessary to call for emergency assistance. It is up to the local authorities to conduct the investigation, not the association. The association should secure the area, notify its insurance carrier and then step back and allow the professionals conduct the investigation.

                                                                                                                                                                                                                       
 

• Hire a professional. Unless there are board members who are licensed and certified in pool maintenance and safety, an association should retain the services of a qualified professional to maintain the pool. That is not saying that you must have lifeguards, but other people qualified in pool maintenance to balance chemicals, check lines, electrical, etc.

The main thing about pool rules, as is the case with all rules, they should be reviewed and updated each year before they are posted, and they should be consistent with state law.

• Jordan Shifrin is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at jshifrin@ksnlaw.com. This column is not a substitute for consultation with legal counsel. Past columns can be read at www.ksnlaw.com.